Citation Nr: 1331283 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 06-18 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Jeany Mark, Attorney ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to December 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO reopened the Veteran's claim for service connection for a back disorder and denied the claim on its merits. The Veteran had originally requested a hearing before the Board; however, he subsequently withdrew his request in April 2009. See 38 C.F.R. § 20.202 (2012). In June 2010, the Board reopened the Veteran's claim for service connection for a back disorder, but remanded the merits of the claim for further development. In February 2012, the Board denied the Veteran's claim for service connection for a back disorder. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2012, the Court granted the parties' Joint Motion for Remand (Joint Motion) and vacated the Board's February 2012 decision. A copy of the motion and the Court's Order are incorporated into the claims file. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless claims file reveals VA treatment records dated from April 2008 to March 2012 that are relevant to the issue on appeal. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that his current low back disorder had its onset during a motor vehicle accident during service in December 1968. He reports that he reinjured his low back in post-service work-related and motor vehicle accidents, but he asserts that he has had low back pain since the initial motor vehicle accident in service. During a VA spine examination in April 2005, the Veteran reported that he was treated at the Asheville VA Medical Center (VAMC) from 1970 to 1978. In the June 2010 remand, the Board noted that the claims file included copies of VA treatment notes from the Asheville VAMC dated from January 1976 to July 1989. Therefore, the claim was remanded to obtain VA treatment notes from the Asheville VAMC dated from December 1969 to December 1975. In June 2010, the Appeals Management Center (AMC) sent a request to the Asheville VAMC asking for all pertinent medical records in conjunction with the Veteran's claimed low back disorder dated from December 1969 to December 1975. In July 2010, the Asheville VAMC responded that it was unable to locate records or a file card for the Veteran. In April 2011, the AMC notified the Veteran that the Asheville VAMC was unable to locate his VA treatment records dated from December 1969 to December 1975. Additionally, in April 2011, the AMC issued a formal finding of unavailability and determined that the VA treatment records from the Asheville VAMC dated from December 1969 to December 1975 were unavailable for review and that further attempts to obtain the records would be futile. However, the parties to the Joint Motion noted that the Veteran later reported during a November 2011 phone call that the relevant outstanding VA treatment notes may be maintained at the Fayetteville VAMC and not at the Asheville VAMC. Therefore, on remand, the RO/AMC should obtain all outstanding VA treatment notes from the Fayetteville VAMC dated from December 1969 to December 1975. Additionally, in June 2010, the Board remanded the claim for clarification of the April 2005 VA examiner's opinion. Specifically, the Board directed the examiner to address two complaints of coccyx pain in August 1968, prior to the reported motor vehicle accident during service, and to consider the Veteran's report of continuity of low back symptomatology since service and the post-service injuries. A VA medical opinion was provided in November 2010. However, in the October 2012 Joint Motion, the parties agreed that the Board failed to provide adequate reasons and bases with regard to whether the November 2010 VA medical opinion was adequate. In particular, the parties noted that the Board did not "discuss the extent to which the November 2010 VA examiner's rationale relied on the April 2005 VA examination, which was deemed to be inadequate." Therefore, on remand, the RO/AMC should obtain an additional medical opinion the purpose of determining the nature and etiology of any current low back disorder that may be present. Accordingly, the case is REMANDED for the following action: 1. The RO should ascertain if the Veteran received any VA, non-VA, or other medical treatment that is not evidenced by the current record, to specifically include, but not limited to, any VA treatment records not associated with the record. Specifically, the RO must obtain any VA treatment records from the Fayetteville VAMC dated from December 1969 to December 1975 pertaining to treatment for a low back disorder. The RO should provide the Veteran with authorization forms for the release of any identified outstanding private treatment records. The RO should then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any low back disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran currently has a low back disorder that manifested in service or that is otherwise causally or etiologically related to his military service, including his symptomatology therein. In rendering the opinion, the examiner should specifically consider the Veteran's assertion of continuity of symptomatology since service, his two complaints of coccyx pain in August 1968, and the report of the motor vehicle accident in December 1968. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).